Factual aspects
2. The appellants are the accused in FIR No.112020082021862020 registered with Jamnagar City ‘A’ Division Police Station in Gujarat for the offences under Sections 3(1), 3(2), 3(3), 3(4), 3(5), and 4 of The Gujarat Control of Terrorism and Organised Crime Act, 2015 (for short ‘the 2015 Act’). Section 167 of the Code of Criminal Procedure, 1973 (for short ‘CrPC’) has been amended in relation to the cases involving offences punishable under the 2015 Act. By virtue of subsection (2) of Section 20 of the 2015 Act, a proviso has been added in addition to the existing proviso to subsection (2) of Section 167 of CrPC which permits the Special Court established under the 2015 Act to extend the period of 90 days provided to complete the investigation up to 180 days. The Special Court is empowered to extend the period up to 180 days on a report of the Public Prosecutor setting out the progress of the investigation and the specific reasons for continuing detention of the accused beyond the period of 90 days.
Main ground
4. The main ground urged in support of the appeals is that when the Special Court passed orders on the reports submitted by the learned Public Prosecutor by which time to complete investigation was extended up to 180 days, the presence of none of the accused was procured either physically or through video conference and that they were not even informed about the reports submitted by the Public Prosecutor.
Consideration of submissions
15. We have carefully considered the submissions. The entire issue revolves around the interpretation of the proviso added by the 2015 Act to subsection (2) of Section 167 of CrPC. For that purpose, we must refer to Section 20 of the 2015 Act. The Section reads thus:
“……………………..”
We also reproduce subsections (1) and (2) of Section 167 of CrPC which read thus:
“……………………..”
Special court may extend the period of custody beyond 90 days based on the report of public prosecutor setting out specific reasons
16. Thus, in a case involving the offences punishable under the 2015 Act, the Special Court is authorized to detain the accused person in custody for a period not exceeding 90 days. The proviso added by subsection (2) of Section 20 of the 2015 Act to subsection (2) of Section 167 of CrPC enables the Special Court to extend the said period to a total of 180 days on the basis of a report of the Public Prosecutor setting out the progress of the investigation and incorporating the specific reasons for the detention of the accused beyond the period of 90 days.
Accused is entitled for default bail if the special court does not exercise its power
17. Thus, unless the Special Court exercises the power under the proviso added by the 2015 Act to subsection (2) of Section 167 of CrPC, on the expiry of the period of 90 days, the accused will be entitled to default bail. When the Special Court exercises the power under the proviso added to subsection (2) of Section 167 of CrPC and extends the time up to 180 days, the accused will be entitled to default bail only if the charge sheet is not filed within the extended period.
General principles governing default bail
19. Before we go to the main controversy concerning the legality of the order of extension passed in exercise of the power under the proviso to subsection (2) of Section 20 of the 2015 Act, it is necessary to recapitulate the settled law relating to default bail. Three decisions of the Benches of three Hon’ble Judges of this Court have laid down the law on this aspect.
19.(a) Uday Mohanlal Acharya v. State of Maharashtra [(2001) 5 SCC 453]. In paragraph 13
(b) M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence – (2021) 2 SCC 485
(c) The third decision is in the case of Rakesh Kumar Paul v. State of Assam [(2017) 15 SCC 67]. This decision holds that it is the duty of the learned Magistrate to inform the accused, of the availability of indefeasible right under subsection (2) of Section 167 of CrPC once it accrues to him. It was held that this will ensure that dilatory tactics of the prosecution are thwarted and obligations under Article 21 of the Constitution are upheld.
20. The issue involved in these appeals will have to be decided in the context of the legal position that the indefeasible right to default bail under subsection (2) of Section 167, CrPC is an integral part of the fundamental right to personal liberty under Article 21 of the Constitution of India.
The effect of the failure of the respondents to produce the appellants before the special Court at the time of consideration of the Extension application
22. The question before us is about the legal consequences of the failure of the Special Court under the 2015 Act to procure the presence of the accused at the time of the consideration of the reports submitted by the Public Prosecutor for a grant of extension of time to complete the investigation. In addition, we will have to consider the effect of the failure to give notice to the accused of the reports submitted by the Public Prosecutor.
23. Under Clause (bb) of sub section (4) of Section 20 of TADA, there is a pari materia proviso that empowers the Designated Court to extend the period provided in clause (a) of sub section (2) of Section 167 of CrPC.
24. The same issue came up for consideration before the Constitution Bench in this Court in the case of Sanjay Dutt. A specific submission was made before the Constitution Bench that the notice to the accused of the application for the extension as contemplated by the decision in the case of Hitendra Vishnu Thakur1 is not a written notice. The argument was that when the report of the Public Prosecutor is considered by the Special Court, it is enough that the presence of the accused is procured before the Special Court and the accused is informed that such a report has been submitted by the Public Prosecutor.
26. In the case of Ateef Nasir Mulla, this Court considered a similar provision under POTA. In the said decision, the law laid down in the case of Sanjay Dutt2 was followed. In the facts of the case, it was found that the accused along with his Advocate were present when the request for extension of time to carry on the investigation was considered by the Court and, in fact, a copy of the report praying for the extension was provided to the accused to enable him to file a reply.
27. In the case of Sanjay Kumar Kedia [(2009)17 SCC 631], this Court considered a similar provision under the NDPS Act. However, this Court did not consider the binding precedent in the case of Sanjay Dutt. Therefore, this decision will not be a binding precedent.
Presence of accused is necessary to extend the custody
28. Clause (b) of subsection (2) of Section 167 of CrPC lays down that no Magistrate shall authorise the detention of the accused in the custody of the police unless the accused is produced before him in person. It also provides that judicial custody can be extended on the production of the accused either in person or through the medium of electronic video linkage. Thus, the requirement of the law is that while extending the remand to judicial custody, the presence of the accused has to be procured either physically or virtually. This is the mandatory requirement of law. This requirement is sine qua non for the exercise of the power to extend the judicial custody remand. The reason is that the accused has a right to oppose the prayer for the extension of the remand. When the Special Court exercises the power of granting extension under the proviso to subsection (2) of Section 20 of the 2015 Act, it will necessarily lead to the extension of the judicial custody beyond the period of 90 days up to 180 days. Therefore, even in terms of the requirement of clause (b) of subsection (2) of Section 167 of CrPC, it is mandatory to procure the presence of the accused before the Special Court when a prayer of the prosecution for the extension of time to complete investigation is considered. In fact, the Constitution Bench of this Court in the first part of paragraph 53(2)(a) in its decision in the case of Sanjay Dutt holds so. The requirement of the report under proviso added by subsection (2) of Section 20 of the 2015 Act to clause (b) of subsection (2) of Section 167 of CrPC is twofold. Firstly, in the report of the Public Prosecutor, the progress of the investigation should be set out and secondly, the report must disclose specific reasons for continuing the detention of the accused beyond the said period of 90 days. Therefore, the extension of time is not an empty formality. The Public Prosecutor has to apply his mind before he submits a report/ an application for extension. The prosecution has to make out a case in terms of both the aforesaid requirements and the Court must apply its mind to the contents of the report before accepting the prayer for grant of extension.
29. As noted earlier, the only modification made by the larger Bench in the case of Sanjay Dutt to the decision in the case of Hitendra Vishnu Thakur is about the mode of service of notice of the application for extension. In so many words, in paragraph 53(2)(a) of the Judgment, this Court in the case of Sanjay Dutt2 held that it is mandatory to produce the accused at the time when the Court considers the application for extension and that the accused must be informed that the question of extension of the period of investigation is being considered. The accused may not be entitled to get a copy of the report as a matter of right as it may contain details of the investigation carried out. But, if we accept the submission of the respondents that the accused has no say in the matter, the requirement of giving notice by producing the accused will become an empty and meaningless formality. Moreover, it will be against the mandate of clause (b) of the proviso to subsection (2) of section 167 of CrPC. It cannot be accepted that the accused is not entitled to raise any objection to the application for extension. The scope of the objections may be limited. The accused can always point out to the Court that the prayer has to be made by the Public Prosecutor and not by the investigating agency. Secondly, the accused can always point out the twin requirements of the report in terms of proviso added by subsection (2) of Section 20 of the 2015 Act to subsection (2) of Section 167 of CrPC. The accused can always point out to the Court that unless it is satisfied that full compliance is made with the twin requirements, the extension cannot be granted.
Failure to produce the accused for extension of time for investigation and custody is in violation of Article 21.
30. The logical and legal consequence of the grant of extension of time is the deprivation of the indefeasible right available to the accused to claim a default bail. If we accept the argument that the failure of the prosecution to produce the accused before the Court and to inform him that the application of extension is being considered by the Court is a mere procedural irregularity, it will negate the proviso added by subsection (2) of Section 20 of the 2015 Act and that may amount to violation of rights conferred by Article 21 of the Constitution. The reason is the grant of the extension of time takes away the right of the accused to get default bail which is intrinsically connected with the fundamental rights guaranteed under Article 21 of the Constitution. The procedure contemplated by Article 21 of the Constitution which is required to be followed before the liberty of a person is taken away has to be a fair and reasonable procedure. In fact, procedural safeguards play an important role in protecting the liberty guaranteed by Article 21. The failure to procure the presence of the accused either physically or virtually before the Court and the failure to inform him that the application made by the Public Prosecutor for the extension of time is being considered, is not a mere procedural irregularity. It is gross illegality that violates the rights of the accused under Article 21.
Failure to produce the accused cause prejudices to him
31. An attempt was made to argue that the failure to produce the accused will not cause any prejudice to him. As noted earlier, the grant of extension of time to complete the investigation takes away the indefeasible right of the accused to apply for default bail. It takes away the right of the accused to raise a limited objection to the prayer for the extension. The failure to produce the accused before the Court at the time of consideration of the application for extension of time will amount to a violation of the right guaranteed under Article 21 of the Constitution. Thus, prejudice is inherent and need not be established by the accused.
It was the duty of the Special Court to ensure that this important procedural safeguard was followed
35. The orders passed by the Special Court of extending the period of investigation are rendered illegal on account of the failure of the respondents to produce the accused before the Special Court either physically or virtually when the prayer for grant of extension made by the Public Prosecutor was considered. It was the duty of the Special Court to ensure that this important procedural safeguard was followed. Moreover, the oral notice, as contemplated by this Court in the case of Sanjay Dutt2, was also not given to the accused.
36. Once we hold that the orders granting extension to complete investigation are illegal and stand vitiated, it follows that the appellants are entitled to default bail.
Jigar @ Jimmy Pravinchandra Adatiya vs. State of Gujarat – Crl. Apl No: 1656 OF 2022 – September 23, 2022.
https://main.sci.gov.in/supremecourt/2021/23563/23563_2021_3_1501_38491_Judgement_23-Sep-2022.pdf
Jigar @ Jimmy Pravinchandra Adatiya
Further study
Section 167 Cr.P.C – An oral application for grant of default bail would suffice
